Senator sues to block Obamacare subsidies for Congress

Sen. Ron Johnson, R-Wis., thinks members of Congress should feel the same pain that other Americans who lost their previous health insurance coverage are experiencing.

That's why he has filed a federal lawsuit challenging an Office of Personnel Management rule that allows members of Congress and their staff to receive government subsidies for the health plans they purchase through the insurance exchange created by Washington, D.C., under the Affordable Care Act. OPM's rule treats Congress as if it were a small business, allowing members and their staff to purchase employer-subsidized coverage through D.C.'s Small Business Health Options Program exchange.

Congress, however, isn't a small business. Plus, Congress specifically directed that its members and their staff could receive coverage from the federal government only through Obamacare's insurance exchanges because it wanted to assure Americans that they weren't getting any special treatment.

The OPM rule, however, treats Congress differently from the millions of Americans who lost or will lose their previous coverage due to Obamacare, Johnson contends. Americans who buy insurance on Obamacare's individual exchanges, such as the federal government's HealthCare.gov, aren't eligible for employer subsidies. (If their incomes are low enough, however, they may be eligible for tax credits from the government to reduce their premiums.)

As a "basic issue of fairness," members of Congress shouldn't be treated differently from other individuals who lost their previous employer-provided health insurance, Johnson contends. Those numbers will increase in coming months, he projects, as more businesses drop their existing coverage because of Obamacare's additional costs and mandates, and direct employees to buy coverage for themselves on the new exchanges.

"People already are losing their employer-sponsored care," he said.

Members of Congress should "experience that same harsh reality."

Johnson's lawsuit contends that OPM lacked the authority to allow Congress to purchase health insurance through the SHOP exchange and receive employer subsidies. The plans offered to Congress through the exchange do not meet the requirements of Federal Employee Health Benefits Plans, the lawsuit contends. Plus, since Congress doesn't meet the definition of a small business, it "is not eligible to participate in a SHOP exchange," the suit argues. The lawsuit, filed in a U.S. District Court in Wisconsin, asks the court to set aside the rule.

When it considered the Affordable Care Act, Congress had three opportunities to add language to continue employer-sponsored care for Congress and its staff, but failed to do so, Johnson pointed out. After OPM issued its rule, Republicans offered legislation to overturn it, but Senate Majority Leader Harry Reid, D-Nev., has refused to allow a vote on it, Johnson said.

"I was hoping for a legislative fix," Johnson said.

"My only alternative at this point, I think, is the lawsuit," he said.

Rick Esenberg, president and general counsel of the Wisconsin Institute for Law & Liberty, thinks Johnson has standing to bring the lawsuit against the OPM since he's directly impacted by the OPM rule.

If he prevails, Johnson said he will consider doing, on a case-by-case basis, what some employers who are dropping health care coverage are doing: giving workers additional compensation to buy insurance on their own. The senator said he's been frugal with his legislative office's salary budget so this gives him flexibility to consider this option.

Johnson comes from a business background, so he's familiar with the cost of health benefits. Many members of Congress aren't, however. They receive a budget for legislative salaries, but they and their employees were automatically covered by the federal government before the ACA was enacted.

Ending government subsidies for congressional coverage would make members of Congress understand how expensive health benefits are, Johnson said.

Most Republicans have supported efforts to end government subsidies for congressional coverage, but one of Johnson's Wisconsin GOP colleagues, Rep. Jim Sensenbrenner, dismissed it as an "unfortunate political stunt."

"I am committed to repealing Obamacare, but the employer contribution he’s attacking is nothing more than a standard benefit that most private and all federal employees receive – including the president," Sensenbrenner said. "Success in the suit will mean that Congress will lose some of its best staff and will be staffed primarily by recent college graduates who are still on their parents’ insurance."

In response, Johnson said he was "disappointed and puzzled" by Sensenbrenner's statement.

“Americans are justifiably outraged when members of Congress exempt themselves from the very laws they impose on everyone else," Johnson said. "With the help of President Obama, that is exactly what Democrats have done once again."